On 8 July 2016, the Dutch Supreme Court ("the Court") handed down a judgment upholding the availability of the passing-on defense in private enforcement litigation. The ruling resulted from a civil claim for damages brought by the electricity company TenneT against the gas-insulated switchgear ("GIS") manufacturer ABB.

In 2007, the European Commission imposed a fine on ABB for its participation in the GIS cartel. Following the Commission decision, TenneT brought an action for damages and claimed that due to ABB's participation in the cartel it had paid an overcharge on a GIS installation purchased from ABB during its participation in the cartel. ABB contended in response that TenneT had passed on the overcharge to its customers.

The Court was asked to rule on the question whether the passing-on defense under Dutch law is to be assessed in the context of the determination of the extent of the damage or in the context of the so-called doctrine of voordeelstoerekening. Pursuant to this doctrine, the defendant can offset any benefit conferred on the claimant against the damages that result from the same tortious act. This benefit can only be offset, if there is a sufficiently direct causal link between the tortious act and the benefit and if offsetting the benefit is reasonable. TenneT argued before the Court that the passing-on defense is to be assessed under the doctrine of voordeelstoerekening, since it followed from the Court's case law in this regard that the strict requirement of a causal link between the wrongful act and the benefit conferred on the claimant would narrow down the possibility of a successful passing-on defense.

At the outset, the Court determined that although the present case was not (yet) covered by the Antitrust Damages Directive and the Dutch draft legislation for its implementation, it was nevertheless desirable that Dutch law was interpreted in a way that was compatible with this directive and draft legislation. According to the Court, the passing-on defense can be assessed both in the context of the determination of the extent of the damage and under the doctrine of voordeelstoerekening, since, under both approaches, it is to be determined whether the claimant is in the same position as he would have been if the tortious act had not taken place. Therefore, both approaches require the benefit conferred on the claimant to be taken into account for the determination of the extent of the damage, provided that it is reasonable to do so. Furthermore, the burden of proving the passing-on was held to be on the defendant under both approaches.

As to the strict causal link between the benefit conferred on the claimant and the tortious act that the Court had established in its previous case law regarding voordeelstoerekening, the Court explicitly reversed its case law on this point. The Court determined that this causal link is to be a conditio sine qua non link in the sense that no benefit would have been conferred in absence of the tortious act.

Consequently, the Court established that a judge that must rule on a passing-on defence is, subject to the parties' contentions, free to choose whether to address this defence under the doctrine of voordeelstoerekening or in the context of the determination of the extent of the damage, since the same legal standard applies to both approaches.

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